FEDERAL COURT OF AUSTRALIA

Heiner v Minister for Immigration and Citizenship [2013] FCA 617

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The applicant’s next friend pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    The applicant was born in Spain on 11 March 2011. She is the child of Mr Philip Heiner and Ms Maureen Kirwin. Ms Kirwin is a citizen of the United Kingdom. Mr Heiner is a citizen of Ireland. He claims also to be a citizen of Australia. The essential issue for determination in this proceeding is whether Mr Heiner, as at 11 March 2011, had ceased to be an Australian citizen having taken up Irish citizenship in 1999.

2    On 11 April 2011, Mr Heiner lodged an application on behalf of the applicant for Australian citizenship by descent. At that time, Mr Heiner held Australian and Irish (European Union) passports and believed that he held dual citizenship. On 29 July 2011, a delegate of the first respondent Minister refused the application on the basis that neither of the applicant’s parents was an Australian citizen at the time of her birth. The applicant sought a merits review of that decision before the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal affirmed the decision under review. Justice Gray, then of this Court, set aside that decision by consent. The Tribunal conducted a second hearing which also affirmed the decision of the delegate.

3    The applicant now appeals from the second decision of the Tribunal. The appeal is pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) on questions of law. The applicant’s counsel alleges that the Tribunal denied his client procedural fairness. Counsel also contends that the decision under challenge involved an erroneous approach to the application of relevant legislation and was an irrational decision. The respondent Minister’s counsel refutes each contention of counsel for the applicant.

BACKGROUND

4    On 12 November 1994, Mr Heiner married Ms Martha Moroney, an Irish citizen. As a consequence of that marriage, Mr Heiner became eligible for Irish citizenship pursuant to the Irish Nationality and Citizenship Act 1956 (Ireland) (“the Irish Act”). The Irish Act did not provide an automatic conferral of citizenship upon marrying an Irish citizen. Rather, it permitted a spouse of an Irish citizen to apply for Irish citizenship.

5    On 23 June 1999, over four years after his marriage to Ms Moroney, Mr Heiner made and lodged a declaration pursuant to the Irish Act. At the relevant time, s 8 of the Irish Act provided so far as is material as follows:

(1)    A person who is an alien at the date of that person’s marriage to a person who is, or who after the marriage becomes, an Irish citizen (otherwise than by naturalisation or by virtue of this section or section 12) shall not become an Irish citizen merely by virtue of the marriage, but may do so by lodging, not earlier than three years from the date of the marriage or from the date on which the person last mentioned became an Irish citizen (otherwise than as aforesaid), whichever is the later, a declaration in the prescribed manner with the Minister, or with any Irish diplomatic mission or consular office, accepting Irish citizenship as post-nuptial citizenship: provided that -

(a)    the marriage is subsisting at the date of lodgement of the declaration, and

(b)    the couple are living together as husband and wife and the spouse who is an Irish citizen submits an affidavit to that effect when the declaration is being lodged.

(2)    A person who lodges a declaration under subsection (1) shall be an Irish citizen from the date of lodgement.

(3)    A person who, before the passing of this Act, married a person who was an Irish citizen (otherwise than by naturalisation) and became a naturalised Irish citizen shall be deemed to have lodged a declaration under subsection (1) on the passing of this Act and thereafter shall be an Irish citizen by virtue thereof and not by naturalisation.

6    It is not in contest that, by completing the declaration referred to above, Mr Heiner became an Irish citizen and was an Irish citizen at the time the applicant applied for Australian citizenship. The Tribunal incorrectly records the date on which Mr Heiner lodged the declaration as 30 September 1999. The correct date is 23 June 1999. The incorrect date appears to have resulted from the way the parties conducted the review. Nothing turns on the difference.

7    On 10 November 2010, over ten years after Mr Heiner became an Irish citizen, he and Ms Moroney were divorced.

The delegate

8    The delegate of the respondent Minister who rejected the application by the applicant for Australian citizenship did so because she concluded that Mr Heiner had ceased to be Australian citizen at the time of her birth. The delegate considered so much to be the effect of the Australian Citizenship Act 2007 (Cth) (“the Act”) as that legislation then provided.

The legislative context

9    Under s 16(2)(a) of the Act, as it applied at the material time, a person born outside Australia was eligible to become an Australian citizen if a parent of the person was an Australian citizen at the time of the birth. Pursuant to s 17(1A) of the Act, the Minister was compelled to refuse an application for citizenship which did not meet the requirements of s 16(2).

10    In accordance with s 4(2) of the Act, the provisions of the Australian Citizenship Act 1948 (Cth) (“the previous Act”) are to be applied in determining whether a person lost Australian citizenship by virtue of obtaining citizenship of another country. The correct interpretation of s 17 of the previous Act is central to this appeal. It provided as follows:

(1)    A person, being an Australian citizen who has attained the age of 18 years, who does any act or thing:

(a)    the sole or dominant purpose of which; and

(b)    the effect of which;

is to acquire the nationality or citizenship of a foreign country, shall, upon that acquisition, cease to be an Australian citizen.

(2)    Subsection (1) does not apply in relation to an act of marriage.

11    In considering s 17 of the previous Act, the Tribunal had two major issues to determine. The first was whether Mr Heiner’s making of the declaration in 1999 was an act the sole or dominant purpose of which was to acquire Irish citizenship. The second was whether, if so, the act of making the declaration was in relation to an act of marriage.

The Tribunal

12    The Tribunal observed that Gray J had remitted the matter to it because the first Tribunal had failed to make a specific finding on the issue of sole or dominant purpose. The Tribunal noted Mr Heiner’s evidence that his dominant purpose was not to acquire Irish citizenship. His evidence was that he could not recall why he signed the declaration back in 1999 but that it was more than likely that his dominant purpose was to please Ms Moroney.

13    In its manner of recording the evidence of Mr Heiner, the Tribunal has given the impression that Mr Heiner and Ms Moroney had filed for divorce by 1999. That is an unfortunate error. It is clear that the couple did not divorce until over ten years later.

14    The Tribunal correctly recorded Mr Heiner’s position as one where he simply accepted post-nuptial Irish citizenship but made no application for such citizenship. However, at [28], the Tribunal said:

…there is no other conclusion that I can draw other than that is he knew he would be acquiring the nationality or citizenship of Ireland, and in completing those forms, that is why he did it.

15    The Tribunal found that the sole or dominant purpose of Mr Heiner in making the declaration was to acquire the citizenship of Ireland. It also found s 17(2) of the previous Act to be inapplicable. The Tribunal described the making of the declaration as:

…an independent action unrelated to the act of marriage which took place nearly five years previously on 12 November 1994.

issues on the appeal

Procedural fairness

16    The first alleged error of law raised by the applicant’s counsel was that the Tribunal denied the applicant procedural fairness in failing to alert her representatives that it had concerns about Mr Heiner’s credibility. Counsel for the applicant, in this regard, refers to misquotations of evidence given by Mr Heiner at the initial Tribunal hearing which are contained in the decision of the second Tribunal. Counsel contends the Tribunal should have put to the applicant’s representatives that Mr Heiner’s evidence was not believable to enable them to submit to the contrary.

17    There is no doubt that the Tribunal was confused about an aspect of the evidence by Mr Heiner. The Tribunal made an error of fact (or an incorrect factual finding) when it said at [26]:

I note that there is a contradiction in his evidence that he said he signed the form more than likely to keep Martha happy, when he had said previously that he had already filed for divorce.

18    Counsel for the applicant invites the Court to make a finding that Mr Heiner and Ms Moroney did not file for divorce in or soon after 1999. He also invites the Court to make a finding that, at the time Mr Heiner completed his declaration which resulted in him becoming an Irish citizen, his marriage to Ms Moroney was subsisting and no proceedings for divorce were about to be commenced in any court of law.

19    Counsel for the applicant points to the ability of the Court to make findings of fact in an appeal under s 44 of the AAT Act as a result of s 44(7). That subsection provides as follows:

(7)    If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:

(a)    the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and

(b)    it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:

(i)    the extent (if any) to which it is necessary for facts to be found; and

(ii)    the means by which those facts might be established; and

(iii)    the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and

(iv)    the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(v)    the relative delay to the parties of the Court, rather than the Tribunal making the findings of fact; and

(vi)    whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and

(vii)    such other matters (if any) as the Court considers relevant.

20    The chief difficulty with the Court making the findings requested of it is that they would be inconsistent with findings made by the Tribunal, albeit findings made in error. It is accepted that the findings which the applicant wishes the Court to make are true. However, the Tribunal’s incorrect findings about Mr Heiner filing for divorce ten years earlier than he did were not determinative of the Tribunal’s approach to the issue of Mr Heiner’s dominant purpose in signing the declaration. Consequently, the incorrect findings were not made as a result of an error of law. This is not an appropriate case, given the above circumstances, for the Court to make findings of fact under s 44(7) of the AAT Act.

21    The following issues were determinative of the Tribunal’s reasoning on the question of dominant purpose. First, the form which was in evidence before the Tribunal, signed by Mr Heiner, stated that it was a “declaration of acceptance of Irish citizenship”. The Tribunal was entitled to consider the text of the form in determining the sole or dominant purpose of Mr Heiner in signing it. Second, there was no lack of procedural fairness in the Tribunal failing to put to Mr Heiner that his evidence about his purpose in completing the declaration was not believable. The Tribunal’s view about Mr Heiner’s evidence did not rest solely on the timing of his divorce. The Tribunal was also concerned about Mr Heiner’s difficulty in recalling why he had made the declaration due to the length of time between its making and his giving evidence to the first Tribunal. That observation was made in the context of the Tribunal considering Mr Heiner to be meticulous in preparing documentation. Further, the Tribunal relied on Mr Heiner’s admission that obtaining Irish citizenship would assist him to travel for work purposes.

22    As counsel for the Minister submits, the Tribunal is not obliged to expose its mental processes or provisional views about evidence to the representatives of parties before it prior to making a decision; see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [48]. Mr Heiner’s purpose in signing the declaration was a critical issue in the proceeding before the Tribunal. Indeed, it was the subject of the order of Gray J which remitted the matter back to the Tribunal. There could not have been any doubt in the minds of the parties that the Tribunal would address that issue. As a critical issue in a review, there is no lack of procedural fairness in not bringing an aspect of it to the attention of the applicant’s representatives; see SZBEL at [194]-[195]. The credibility of Mr Heiner’s version of events should have been understood by the representatives of the parties as an important issue relevant to the determination of Mr Heiner’s purpose in making the declaration.

23    In conclusion on this aspect of the appeal, the Court considers that the applicant was not denied procedural fairness on account of the incorrect findings of fact made by the Tribunal concerning Mr Heiner. The Court also declines to make the findings of fact as requested by the applicant’s counsel under s 44(7) of the AAT Act.

Other error in applying section 17(1) of the previous Act?

24    It is convenient to deal next with the third question of law raised by counsel for the applicant. It is:

Did the Tribunal err in applying s 17(1) of [the previous Act] when it failed to balance the concurrent purposes of Mr Heiner signing the relevant declaration for the sake of determining which was the ‘dominant’ purpose?

25    I doubt whether, as framed, this purported question of law is other than an invitation to the Court to engage in a merits review of the Tribunal’s decision. It is based on the view that there were two purposes of Mr Heiner in signing the declaration. The first was to register his marriage in Ireland. The second was to acquire Irish citizenship. It is said that neither purpose was more dominant than the other.

26    On the evidence before the Tribunal as to the content of the form for the making of the declaration and given the gap (over four years) between the marriage and the signing of the declaration, the Tribunal was entitled, as a matter of fact, to form the view that Mr Heiner’s intention to acquire Irish citizenship was his dominant purpose in completing the declaration. This question of law, assuming it to be a valid question of law, must be answered in the negative.

Irrationality

27    The fourth listed question of law raised in the application is whether the decision of the Tribunal is void for jurisdictional error on the basis that it was irrational. Two findings of fact are fastened upon by the applicant’s counsel to attempt to make out a positive answer to the question as framed.

28    It must be remembered that a decision will only be irrational and reviewable on that basis if it is “one at which no rational or logical decision maker could arrive on the same evidence”; see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [130] per Crennan and Bell JJ.

29    Counsel for the applicant identified errors in some aspects of the Tribunal’s relevant statement of facts. However, the conclusion of the Tribunal on whether Mr Heiner’s sole or dominant purpose in making the 1999 declaration was to seek Irish citizenship was based on the text of the declaration itself. In effect, the Tribunal found that Mr Heiner’s filling in of the declaration on that form was a positive act by him designed to seek and achieve Irish citizenship.

30    The first incorrect statement of fact which counsel identifies is that made at [6] of the reasons of the Tribunal. There the Tribunal stated that Mr Heiner gained Irish citizenship when he married Ms Moroney. That is plainly an error and it conflicts with the Tribunal’s finding that Mr Heiner became an Irish citizen on the making of the declaration. The error occurs in the introductory paragraphs of the reasons for decision of the Tribunal where the Tribunal was attempting to provide what may be described as a helicopter view for the reader about the matters arising for decision. Later in its reasons, when the Tribunal came to fasten on the critical issue of the purpose of Mr Heiner in completing the declaration, it asked itself the correct question and was not distracted by its earlier incorrect statement about Mr Heiner acquiring Irish citizenship when he married Ms Moroney.

31    The second error is the one identified in the context of the first question of law dealt with above. It concerns the statement at [26] of the Tribunal’s reasons that there was a contradiction in the evidence of Mr Heiner in that he said he signed the declaration to keep his wife happy but had already filed for divorce. That part of the decision may be contrasted with [29] where the Tribunal said that the effect of the declaration was to obtain Irish citizenship, as Irish citizenship would not have been obtainable had Mr Heiner not then been living with Ms Moroney.

32    The statement about filing for divorce, as discussed above, was wrong. It was an error of no consequence, however, as the Tribunal relied on the text of the declaration to form the view that Mr Heiner was applying for Irish citizenship by making the declaration and that so much was his dominant purpose in completing the form.

33    The applicant’s counsel referred to a judgment of Robertson J in Minister for Immigration & Citizenship v SZRKT [2013] FCA 317 where his Honour made the point at [77] that the categories of jurisdictional error are not closed. Counsel then referred to the following passage from SZRKT at [113]:

It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error was tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. I do not regard that decision as stating or attempting to state exhaustively the circumstances in which error may or does go to jurisdiction.

34    Accepting what his Honour there says to be correct, where there is nonetheless an independent basis for the decision arrived at by the Tribunal no jurisdictional error will be established. In that regard, the judgment of McKerracher J in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 must be considered. In a passage to which Robertson J referred at [134] in SZRKT, McKerracher J said (at [85]):

Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision…

This question of law must also be answered in the negative.

Section 17(2)

35    The question of law identified as the second question of law in the amended notice of appeal filed by the applicant concerns whether the Tribunal erred in its approach to s 17(2) of the previous Act. It fastens on whether the Tribunal asked the wrong question by inquiring whether Mr Heiner acquired Irish citizenship because of an act of marriage or close in time to a marriage rather than “in relation to an act of marriage”.

36    Under s 17(2) of the previous Act, a person who meets the requirements of s 17(1) may nonetheless be held not to have forfeited Australian citizenship if the act of acquiring foreign citizenship was “in relation to an act of marriage”. At [33] of its reasons for decision, the Tribunal said:

…..I find that subsection (2) does not apply in this case because the actions by the applicant’s father in respect of subsection (1) were not in relation to an act of marriage.

37    Earlier, at [32] the Tribunal said:

…it is my view that Mr Heiner acquired citizenship independently of the act of marriage which would attract the exemption under section 17 subsection (2), and I reiterate that he did not have to register the marriage with the authorities and he made a valid declaration which he was not required to do, and that was in accordance with the Irish legislation. Neither Australian nor Irish law required him to insure the validity of the marriage that was then in existence.

38    By so deciding, the Tribunal took the view that the particular act of making the declaration was not in relation to an act of marriage because Mr Heiner’s marriage to Ms Moroney did not produce the result that he thereby attained Irish citizenship without taking any further step. A consideration of whether the Tribunal was correct as a matter of law in approaching s 17(2) in that way depends on the proper construction of the subsection.

39    The correct interpretation of s 17(2) is contestable. The Minister submits that the optimum approach is to view s 17(2) as exempting “an act of marriage” from the effect of s 17(1). For example, it would mean that citizenship is not lost where an Australian citizen acquires the citizenship of another country, under the laws of that country, merely by marrying a foreign national.

40    Counsel for the applicant submits that the use of the words “in relation to an act of marriage” refers to acts done independently of marriage but nonetheless in relation to marriage. Counsel refers to authorities which note that the expression “in relation to” is one of wide import.

41    As the plain wording of s 17(1) read with s 17(2) produces no clearly preferable construction, it is relevant to consider the history of the provision. Section 17 was introduced by an amendment to the previous Act in 1984. Until that time, the then version of s 17 provided:

an Australian citizen of full age and of full capacity, who, whilst outside of Australia and New Guinea, by some voluntary and formal act, other than marriage, acquires the nationality or citizenship of a country other than Australia, shall there upon cease to be an Australian citizen. (Emphasis added).

42    The Second Reading Speech of the then Minister in introducing the bill which led to the relevant amendment in s 17 in 1984 referred to the amendment in a way which supports the current Minister’s construction of the section as one which did not intend to alter the meaning of the pre-1984 provision. Introducing the amending legislation, the then Minister said:

Clause 13 repeals existing section 17 and substitutes new provisions to the effect that a person, being an Australian citizen of 18 years of age, will cease to be an Australian citizen where an act is committed…other than marriage – specifically for the purpose of acquiring a foreign nationality or citizenship. (Emphasis added).

43    The Second Reading Speech reveals a legislative intention to exclude from s 17(1) the circumstances where an act of marriage automatically results in the person acquiring citizenship of another country.

44    It does not follow, as counsel for the applicant contends, that a change of wording in the Act must necessarily mean that a different meaning is intended. Parliament may have chosen to introduce a new drafting style or have attempted to achieve greater clarity as a result of other amendments which were required for the particular provision to change its meaning in those other respects. A comparison of the pre-1984 and post-1984 versions of s 17 illustrate that some changes were made, including the deletion of reference to New Guinea.

45    It was the clear intention of Parliament that s 17(2) be confined to the act of marriage itself. Reading the provision in that way supports the submission of counsel for the Minister that the question posed by the subsection is not whether the relevant act or thing (in this case the declaration) was an act or thing in relation to the marriage in the sense of having some connection to the marriage but rather whether the act or thing was itself an act of marriage. As the declaration itself was not an act of marriage, s 17(2) could not operate to save Mr Heiner from losing his Australian citizenship. The Tribunal did not err in applying s 17(2) of the previous Act. This question of law is answered in the negative.

Comment

46    If it is considered that the interpretation of s 17(2) favoured by the Court may operate harshly against the interests of the applicant, one must bear in mind the current legislative provisions governing an application for Australian citizenship by a person in the position of the applicant. It is not in dispute that if the applicant applied today to become an Australian citizen, she would be eligible for such citizenship pursuant to s 21(6) of the Act as a person born outside Australia whose parents were not Australian citizens at the time of her birth but in respect of whom a parent had ceased to be an Australian citizen under s 17 of the previous Act. Counsel for the applicant acknowledged that Mr Heiner would also be eligible for Australian citizenship under s 29(3) of the Act subject to satisfying the Minister that he is of good character. That is on the assumption that the Court has determined correctly that Mr Heiner was validly deprived of his Australian citizenship. Counsel informed the Court that Mr Heiner was reluctant to avail himself of the provisions of s 29(3) on account of asserting to foreign authorities during his business travels since 1999 that he is an Australian citizen. In response, the Court reminded counsel that the current proceeding is not about Mr Heiner but the applicant.

Conclusion

47    The appeal is dismissed with costs.

Associate:

Dated:    21 June 2013